At first glance, the Court’s decision in Kiobel appears to portend a significant restriction on Alien Tort Statute jurisdiction—even for suits that allege torture, genocide, or another of what the Court in Sosa called the “modest number of international law violations” cognizable under the ATS, those with “definite content and acceptance among civilized nations” equal to that of the “historical paradigms” (such as piracy and violation of safe conducts) familiar in 1789.
And perhaps that will, indeed, be Kiobel’s legacy. But perhaps not. What’s most striking about the collected opinions is that the Justices themselves apparently do not think the decision will necessarily cut off ATS claims in such a comprehensive manner. Justice Kennedy writes that the decision “leave[s] open a number of significant questions regarding the reach and interpretation of the Alien Tort Statute”; and even Justices Alito and Thomas acknowledge, with evident regret, that the Court’s opinion “obviously leaves much unanswered” (emphasis added).
What is the “much” that the Court does not answer? The “number” of “significant” questions that remain unresolved? If only it were as “obvious” as Justice Alito suggests.
To begin with, what legal propositions is it fair to say the Kiobel decision does establish? Well, it is now settled that where the alleged conduct in question occurred wholly abroad, the mere fact that a corporate defendant has an office in the United States and shares that are traded on a U.S. exchange is insufficient to establish ATS jurisdiction, unless and until Congress amends the statute. (All nine Justices agree that this is the case where only aiding and abetting is alleged; and I think it’s safe to say that a majority would rule the same way even where the defendant corporation is alleged to be the principal tortfeasor.)
By contrast, all nine Justices agree that there is ATS jurisdiction when, in Justice Alito’s words, “the domestic conduct is sufficient to violate an international law norm that satisfies Sosa’s requirements of definiteness and acceptance among civilized nations.”
But what about cases falling somewhere in between these polar ends?
Tom Lee describes some hypothetical cases that might not be covered by the Kiobel holding, such as where the conduct occurred in a “failed state”; but I doubt such rare hypotheticals are what the Justices had foremost in mind. (It’s hard to imagine these are the “significant” questions that the decision “obviously” does not answer.)
I can think of at least three more familiar types of cases that the Justices might have had in mind as those that remain “unresolved” by Kiobel:
(i) Cases alleging Sosa-sufficient torts committed overseas by U.S. defendants;
(ii) Cases such as Filartiga, where a foreign defendant uses the U.S. as an effective “safe harbor,” thereby preventing other states from bringing him to justice;
(iii) Cases in which the defendant is alleged to have engaged in conduct in the United States that contributed materially to the violation of a Sosa-sufficient law of nations norm (such as providing active assistance to torture), but where that conduct in the U.S. was not itself sufficient to establish the violation. (I am not including in this category cases alleging aiding and abetting predicated solely on knowledge by a U.S. corporation of a foreign subsidiary’s bad acts. Although even that case is not technically resolved by Kiobel, I think it’s safe to predict the Court would not recognize such a claim, most likely on the theory that such general knowledge, and failure to stop the tort, does not satisfy the scienter requirement for a Sosa-qualified claim.)
We can say with some confidence that at least four current Justices (Breyer, Ginsburg, Sotomayor and Kagan) would recognize ATS jurisdiction in many or all cases in these three categories . . . and that, by contrast, two Justices (Alito and Thomas) would not. What we do not know is whether and in what circumstances one or more of the other three Justices — or future Justices — would recognize ATS jurisdiction in such cases.
The question going forward, then, is whether such claims can satisfy the standard the Chief Justice articulates in the key, final paragraph of the Court’s opinion: Do they “touch and concern the territory of the United States . . . with sufficient force to displace the presumption against extraterritorial application”?